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Gauhati High Court · body

2015 DIGILAW 250 (GAU)

Kutub Uddin v. State of Assam

2015-03-03

B.K.SHARMA

body2015
Judgment 1. This appeal is directed against the judgment of conviction dated 19.08.2014 passed by the learned Sessions Judge, Karimganj in Sessions Case No.44/2010, by which the accused/appellant has been convicted u/s 498(A) IPC with the sentence of rigorous imprisonment for 02(two) years and fine of Rs. 1000/- (Rupees one thousand) and in default to undergo further rigorous imprisonment for 01(one) month. He has also been convicted u/s 306 IPC with the sentence of rigorous imprisonment for 07(seven) years and also to pay a fine of Rs. 2000/- (Rupees two thousand) and in default to undergo further rigorous imprisonment for 02(two) months. Both the sentences are to run concurrently. Period of custody already undergone is to be set of from the sentences. 2. Prosecution story in brief is that on 14.07.2007 at about 6.30 A.M., the complainant (PW-1) on receipt of information about his daughter i.e. the deceased and wife of the accused/appellant, came to the house of the accused/appellant and saw her deadbody. It was alleged that the accused/appellant with physical torture, caused the death of the deceased which he could come to know from his granddaughter (PW-7), who was 5(five) years old at that point of time. 3. On the basis of the FIR lodged narrating the aforesaid fact, R.K. Nagar Police Station Case No.71/2007 was registered u/s 302 IPC. Thereafter, police carried out the investigation and during investigation, inquest over the deadbody was done and the deadbody was sent for postmortem examination. Since the postmortem examination did not reveal the cause of death, viscera were sent for Forensic Laboratory Examination, which gave positive test for Thioden (Organocholorine insecticide). On completion of the investigation, charge sheet was submitted u/s 304(B) IPC and accordingly charge was framed under the said section of law with additional charge u/s 302 of the IPC. Charges having been read over and explained to the accused/appellant, he pleaded not guilty and claimed to be tried. 4. During trial, the prosecution examined 10(ten) witnesses including the Investigating Officer, Medical Officer and the Forensic Laboratory Expect. The accused/appellant was also examined u/s 313 Cr.P.C. 5. PW-1 and PW-2 are the parents of the deceased. PW-1 in his deposition stated that about 11 years prior to the death of their daughter, the accused/appellant married her. According to him, the deceased was tortured by the accused/appellant both physically and mentally. The accused/appellant was also examined u/s 313 Cr.P.C. 5. PW-1 and PW-2 are the parents of the deceased. PW-1 in his deposition stated that about 11 years prior to the death of their daughter, the accused/appellant married her. According to him, the deceased was tortured by the accused/appellant both physically and mentally. He in his deposition also referred to the endeavour to settle the matter amicably by holding Bichars. Three children were born to them. Narrating the incident, he stated that he was reported by one Misba Begum over telephone that his daughter was taken to hospital. On receipt of the information, he along with PW-2 and other relatives went to the house of the accused and found the deadbody of the deceased lying on a bed. They were informed that the deceased took poison. On enquiry, their grand daughter i.e. PW-7 informed that her mother i.e. the deceased was badly beaten by the accused. They could also learn from the villagers that prior to the death of the deceased, she was badly beaten up by the accused with a piece of wood. Blood was found oozing out from the ear of the victim. He could notice many injuries on her body, like back, neck, chest, waist etc. Thereafter, he lodged the Ext.1 FIR. After postmortem examination, the deadbody was handed over to him. He further deposed that he could learn from Fakar Uddin and Fargun Nessa, two neighbourers of the accused that he accused/appellant used to torture the victim regularly. 6. PW-2 also narrated the same story with the addition that after the marriage the accused used to torture her both mentally and physically and did not allow her to visit the parental house. She also referred to the endeavour to settle the matter amicably by holding Bichar. According to her, altogether four Bichars were held, but to no affect. On receipt of the telephonic information, she along with her husband (PW-1) visited the residence of the accused/appellant where they found the deadbody of their daughter with injuries in ear, nose, chest, neck and back. She also stated that blood was found oozing out from nose and ear. Daughter of the victim i.e. the PW-7 told her that the accused killed the deceased. Although PW-1 and PW-2 were cross-examined by the defence, but nothing contradictory could be brought on record. 7. She also stated that blood was found oozing out from nose and ear. Daughter of the victim i.e. the PW-7 told her that the accused killed the deceased. Although PW-1 and PW-2 were cross-examined by the defence, but nothing contradictory could be brought on record. 7. PW-3 in his statement stated that on the day of occurrence, hearing hue and cry, he went to the house of the accused and saw the deceased lying on the ground. He saw saliva coming out from her mouth. He then asked the accused to take her to hospital. The inmates of the house informed him that the deceased took poison. Thereafter, she was taken to hospital by the accused/appellant. During cross examination, he stated that there had been good relationship between the accused and the deceased, but he could not say the actual cause of death. 8. PW-4 is the brother-in-law of the complainant and co-villagers of the accused. He in his deposition stated that the accused married the deceased about 11 years back. He also testified that many village Bichars were held to come up with an amicable settlement between the accused/appellant and the deceased. According to him, the deceased used to report him about the torture by the accused/appellant. According to him, on the previous day of incident, just before the evening he heard alarm of the deceased. He then went to her house, but he was not allowed to enter and also to see the deceased. In the evening, at about 8 p.m., he again heard alarm of the deceased, but did not go to her. On following day morning, he heard that PW-7 was crying with the disclosure that her mother was killed by the accused/appellant. Thereafter, he went to the house of the accused/appellant and on query, the PW-7 told him that the accused/appellant killed her mother. 9. PW-5 is the wife of PW-4, who also narrated the same story as that of the PW-4. PW-6 is the uncle of the accused/appellant and a resident of the same homestead. He in his deposition stated that victim died by taking poison leaving two female children and one baby son. According to him, before the death, he had seen the victim going to the well to fetch water. Thereafter, he suddenly heard alarm that the deceased took poison. He immediately went there and saw the deceased was vomiting. He in his deposition stated that victim died by taking poison leaving two female children and one baby son. According to him, before the death, he had seen the victim going to the well to fetch water. Thereafter, he suddenly heard alarm that the deceased took poison. He immediately went there and saw the deceased was vomiting. She was taken to R.K. Nagar hospital, where she was declared dead. According to him, the relationship between the deceased and the accused was normal. 10. PW-7, who allegedly reported to PW-1 and PW-2 that her mother was tortured by her father i.e. the accused/appellant, during trial, however, stated that while she was in the Mosque, her mother died. On her returning, she found her mother was locked from inside. After that, the door of the room was broken and her mother was found lying on the floor and foam was coming out from her mouth. She then went to the paddy field to inform her father. Her mother was taken to hospital. Hearing the incident, her grandfather and others came to their house. 11. PW-10 is the doctor, who conducted the postmortem examination over the deadbody of the deceased. During postmortem, he found the followings:- “The deadbody was found as radish swellon mark over the right side near the nape of neck on dissection of the injured area. It was found extending up to muscle lair only. All other vital organs were found pale, stomach was found almost decomposed with half digested food maters. The only injury mark was found on the right side of the neck extending up to skin which was and superficial. The injury was ante mortem and simple in nature. Size of the injury was 2 inch x 1 inch. No definite cause of death could be ascertained; hence viscera such as stomach with its contents, lung, liver, kidney, spleen were kept preserved for FSL examination.” In the cross examination he stated that no injury was seen on the breast, chest, waist, ear and nose. 12. PW-8 is the Deputy Director of Forensic Science, who in his deposition stated that on 03.10.2007, while he was working as a Scientific Officer in the Toxicology Division, he receipt one parcel containing the aforementioned viscera from the then Director in connection with R.K. Nagar P.S case No.71/2007. Upon examination, the result was positive test for Thioden (Organocholorine insecticide). 12. PW-8 is the Deputy Director of Forensic Science, who in his deposition stated that on 03.10.2007, while he was working as a Scientific Officer in the Toxicology Division, he receipt one parcel containing the aforementioned viscera from the then Director in connection with R.K. Nagar P.S case No.71/2007. Upon examination, the result was positive test for Thioden (Organocholorine insecticide). Ext.2 is his report. 13. PW-9 is the Investigating Officer, who in his deposition generally stated about the investigation that was carried out. In the cross examination, he stated that there was an injury on the right side of the leg. The accused/appellant in his statement u/s 313 Cr.P.C stated that the deceased died by taking poison. If that be so, the question necessarily arises as to why she had to take that extreme step causing death to her leaving behind three minor children. 14. Mr. I. Choudhury, learned counsel for the accused/appellant submits that the evidence of PW-1, PW-2, PW-4 and PW-5 cannot be relied upon, they being related witnesses. According to him, no independent witnesses having supported the prosecution case, the conviction of the accused/appellant by the learned trial Court was not warranted. 15. Mr. D. Das, learned Additional Public Prosecutor, Assam on the other hand submits that when the prosecution witnesses categorically stated about the torture meted out to the deceased, that was the eminent cause of committing suicide by the victim. He submits that at the first instance the PW-7 had narrated as to how her father was responsible for the death of her mother. According to him, it was quite natural for the PW-7 not to remember what she had stated immediately after the incident and more particularly when she was under the care and custody of the accused/appellant. 16. I have given my anxious consideration to the submissions advanced by the learned counsels for the parties and have also perused the entire evidence on record. 17. The fact that the deceased was tortured both physically and mentally by the accused/appellant is evident from the evidence of PW-1, PW-2, PW-4 and PW-5. Although they were cross examined, but nothing contradictory could be brought out. It is in their evidence that efforts were being made from time to time to get the matter settled amicably, but the same resulted in failure. Although they were cross examined, but nothing contradictory could be brought out. It is in their evidence that efforts were being made from time to time to get the matter settled amicably, but the same resulted in failure. Although it was submitted that the evidence of Pw-1 and Pw-2 is not believable in view of their purported exaggeration regarding the injuries noticed on the body of the deceased, but it is clear in the evidence of PW-10 that there was injury mark on the right side of the neck of the deceased extending up to skin. The injury was ante-mortem and simple in nature size of which was 2 inch x 1 inch. Admittedly, the deceased took poison. If she had gone to fetch water going to the well in the early morning, her behavior was normal, but suddenly thereafter she took poison. In such circumstances, the testimonies of the aforesaid PWs cannot be disbelieved more particularly when on arrival of PW-1 and PW-2 along with other villagers, PW-7 who was present along with her mother, stated the cause of death as the torture meted out to her mother by the accused/appellant. PW-3 in her statement also stated that saliva was coming out from the mouth of the deceased. It was as per his advice, the accused/appellant took the deceased to hospital. 18. From the above evidence what is noticed is that there was cruelty on the part of the accused/appellant towards his wife i.e. the deceased. As per the ingredients of section 498(A) IPC, whoever, being the husband or the relatives of the husband of a woman, subjects such woman to cruelty, shall be punished with imprisonment for a term, which may extend to 03(Three) years and shall also be liable to fine. Section 306 IPC provides for punishment for the offence of abetment of suicide. Whoever, abets the commission of such suicide, shall be punished with imprisonment of either description of a term which may extend to 10(ten) years and shall also be liable to fine. The terms “Abetment of a thing and abettor” are defined as follows:- “107. Section 306 IPC provides for punishment for the offence of abetment of suicide. Whoever, abets the commission of such suicide, shall be punished with imprisonment of either description of a term which may extend to 10(ten) years and shall also be liable to fine. The terms “Abetment of a thing and abettor” are defined as follows:- “107. Abetment of a thing- A person abets the doing of a thing, who- First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation-1 - A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation-2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. 108. Abettor.- A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Explanation 1- The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2- To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Explanation 3- It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Explanation 4- The abetment of an offence being an offence, the abetment of such an abetment is also as offence. Explanation 4- The abetment of an offence being an offence, the abetment of such an abetment is also as offence. Explanation 5- It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.” 19. From the evidence on record, it may not be a case in which the accused/appellant can be said to have abetted the suicide committed by the deceased. But certainly it will be a case falling u/s 498(A) IPC inasmuch as, there are overwhelming evidence that the accused/appellant used to torture his wife i.e. the deceased. 20. In view of the above, this appeal is partly allowed by setting aside the conviction of the accused/appellant u/s 306 IPC, but maintaining his conviction u/s 498(A) IPC. Accordingly, he shall now undergo the sentence imposed on him for the said offence. 21. Registry shall send down the LCR along with a copy of this judgment and order to the learned Court below.